Teamsters Local Union 579 (hereinafter Complainant or Union), having filed
a complaint of prohibited practices on December 1, 1987, with the Wisconsin
Employment Relations Commission (hereinafter Commission), alleging that the City
of Whitewater (hereinafter Respondent or City) had committed prohibited practices
within the meaning of Sec. 111.70, Stats., by reducing the wages of a bargaining
unit member; and the parties having agreed on January 27, 1988, to hold
scheduling of the hearing concerning the aforesaid complaint of prohibited
practices in abeyance pending an informal attempt to resolve said dispute; and
the Complainant having advised the Commission on May 5, 1989, that it wished to
proceed to hearing on the complaint; and the Commission having appointed James W.
Engmann, a member of its staff, on July 26, 1989, to make and issue Findings of
Fact, Conclusions of Law and Order in this matter as provided in
Secs. 111.70(4)(a) and 111.07, Stats.; and the Respondent having filed a motion
to dismiss the complaint or, in the alternative, to require a more definite
statement of claim on July 25, 1989; and the Examiner having issued a Notice of
Hearing on Complaint on July 26, 1989, scheduling said hearing for August 30,
1989; and the Complainant having filed an amended complaint on August 15, 1989,
alleging that the Respondent had committed prohibited practices within the
meaning of Secs. 111.70(3)(a)1 and 3, Stats., by reducing a bargaining unit
members wages for the purpose of discouraging concerted activities and membership
in a labor organization, and Secs. 111.70(3)(a)1 and 4, Stats., by unilaterally
changing working conditions without negotiating with the Union; and the
Respondent having on August 22, 1989, filed a motion to dismiss based upon
resjudicata and a motion to hold hearing in abeyance
pending resolution of the
motion to dismiss; and the Complainant having on August 23, 1989, filed a letter
in opposition to the motion to dismiss and the motion to hold hearing in
abeyance; and the Examiner having issued an Order on August 25, 1989, denying the
motion to hold the hearing in abeyance and scheduling hearing on the motion to
dismiss in concert with the hearing on complaint; and hearing on said complaint
and motion having been held on August 30, 1989, in Whitewater, Wisconsin, at
which time the parties were afforded the opportunity to enter evidence and make
arguments as the wished; and said hearing having been transcribed; and a
transcription of said hearing having been received on September 8, 1989; and the
parties having filed briefs, the last of which was received on January 9, 1990;
and the Examiner having considered the evidence and arguments of the parties,
makes and issues the following Findings of Fact, Conclusions of Law and Order.

FINDINGS OF FACT

1. That Teamsters Local Union 579 (hereinafter Complainant or Union) is
a labor organization within the meaning of Sec. 111.70(1)(h), Stats., and
maintains its offices at 2214 Center Avenue, Janesville, Wisconsin.

2. That the City of Whitewater (hereinafter Respondent or City) is a
municipal employer within the meaning of Sec. 111.70(1)(j), Stats., and maintains
its offices at 312 West Whitewater Street, Whitewater, Wisconsin.

3. That on or about October 7, 1986, the Union filed a petition with the
Wisconsin Employment Relations Commission (hereinafter the Commission) to
represent certain employes of the City; that at hearing on the petition, the
Union argued that the position of Treasurer was occupied by a municipal employe
and should be included in the bargaining unit; that at hearing the City argued
that the position of Treasurer was occupied by a managerial employe and should
be excluded from the bargaining unit; that on March 30, 1987, the Commission
determined that the Treasurer was a municipal employe and was included in the
bargaining unit; and that, as a result of the election in May 1987, the Union was
certified as the exclusive bargaining representative.

4. That City Manager Paul Webber (hereinafter City Manager) was
appointed to his position in August 1984; that during 1984, he determined that
some City employes worked a 35 hour week and others worked a 40 hour week; that
on December 31, 1984, he issued Policy Memorandum 2-85, which read in part
as
follows:

1. Purpose. The purpose of this Policy is to
establish rules and
guidelines for employee work schedules and managing the payment of over-time or
accumulation of compensatory time.

2. Applicability. This policy pertains to all
non-union classified
employees of the city. Employees represented by a union shall be governed by the
current Labor Agreement.

3. Workweek. The normal workweek for
full-time employees shall be 40
hours per week not including lunch break, but including one fifteen minute coffee
break. Time allocated for coffee breaks cannot be saved to shorten the work day.
All new full-time employees shall be hired on this basis.

4. Exceptions to Workweek:

(a) Hourly wage employees. Those full-time employees
who have been
paid 40 hours per week which included a paid lunch hour each day shall have their
scale increased to reflect the same amount of pay each week based on working 35
hours per week. . . . Full-time hourly wage employees who work 40 hours per week
will be considered for higher cost of living increases than those who work 35
hours per week, in consideration for the additional time they are available.
Employees who currently work 35 hours per week will be given the opportunity to
work 40 hours per week starting January 1, 1986. They must indicate an agreement
to do so by August 1, 1985.

(b) Salaried Employees (Full-time). These are key
positions of high
responsibility, which are not paid by the hour. They are normally expected to
work 40 hours a week, on the average. Some full-time, salaried employees have
been allowed to work 35 hours per week. Those employees will be given the
opportunity to agree to a normal schedule of 40 hours per week starting
January 1, 1986. They must indicate an agree-ment to do so by August 1,
1985.
Full-time salaried employees who work 40 hours per week, as a normal schedule,
will be considered for higher cost of living increases than those who work 35
hours per week, in consideration for the additional time they are available. .
. .

that on July 26, 1985, the City Manager issued a memorandum regarding work
schedules to all employes working a 35 hour week; that said memorandum read in
part as follows:

1. Policy memorandum of 2-85, dated December 31,
1984, indicated full-time employees currently working a 35-hour per week schedule shall, by
August 1,
1985, indicate whether or not they will agree to work a 40-hour schedule starting
in 1986.

2. Those employees who choose to continue to work a
35-hour per week
schedule will not be considered for cost-of-living increases in 1986 and 1987.
I have decided to take this action in order to correct dis-parities in the
standard work week for city employees. Hourly wage employees would be
compensated for the five extra hours they work. Employees who are paid an annual
salary would work the additional five hours with no additional compensation,
other than cost-of-living increases.

3. Please indicate your decision by signing one of the
following
statements.

(a) I agree to a normal work schedule of 40 hours per week
starting in
January, 1986.

Signature Date

(b) I wish to continue my normal work schedule of 35 hours
per week and
understand that I will not be considered for cost-of-living increases in 1986 and
1987.

Signature Date

and that all employes then working a 35 hour week agreed to work a 40 hour week
effective January 1986 except City Treasurer Theresa Graham.

5. That Theresa Graham (hereinafter Treasurer) has been employed by the
City for over 17 years; that she has worked as Treasurer since the summer of
1982; that she was hired for and worked a 35 hour week; that on or about
December 31, 1984, she received Policy Memorandum 2-85, quoted in Finding of
Fact 4, from the City Manager; that on or about July 26, 1985, she received the
memorandum regarding work schedules, quoted in Finding of Fact 4, from the City
Manager; that in a memorandum to the City Manager dated July 31, 1985, the
Treasurer wrote in part as follows:

I am unable, at this time, to sign the agreement that is
attached.

On October 23, 1985, a decision will be made as to
whether my husband or
myself will have custody of our children. Should I be given custody, my youngest
daughter will need me at home until she leaves for school at 8:30 A.M. It would
not pay for me to have to take her to a sitter at 8:00 and turn around at 8:30
to go and get her and drive her to school. It has worked out very well with my
starting work at 8:30, then I just drop her off at school on my way to work.

If I should not receive custody, the hours I work will make no
difference
to me. I would, however, expect to be compensated for an additional five hours
per week.

I do feel, though, that I was hired to work 35 hours per week
over fifteen
years ago. I have never taken advantage of overtime pay or compensatory time.
I have always taken pride in my work and have done the best job that I can. I
feel having to make concessions at this point in my career is somewhat unfair.

that at that time she was a salaried employe in pay range four earning $20,246
per year; and that she did not receive the yearly wage increase in January 1986
or January 1987.

6. That City Clerk/Controller Wava Jean Nelson (hereinafter City Clerk)
received Policy Memorandum 2-85, quoted in Finding of Fact 4, from the City
Manager on or about December 31, 1984; that during 1985, she was a salaried
employe in pay range three earning $24,960 a year for a 35 hour work week; that
on or about July 26, 1985, she received the memorandum regarding work schedules,
quoted in Finding of Fact 4, from the City Manager; that on August 1, 1985,
she
signed the memorandum, agreeing to work a normal work schedule of 40 hours per
week starting in January 1986; that she wrote on the memorandum that said work
schedule was "including meetings"; that in January 1986, she received a 4.5
percent cost-of-living increase in her yearly salary; that she did not receive
extra compensation for the longer work week; that her salary in 1986 was $26,083
a year; that in January 1987, she received a 2.5 percent cost-of-living increase
in her yearly salary; and that her salary was $26,686 in 1987.

7. That Building Inspector/Zoning Administrator Bruce R. Parker
(hereinafter Building Inspector) was a salaried employe in pay range four in
1985, receiving $19,814 a year for a 35 hour week; that on or about July 26,
1985, he received the memorandum regarding work schedules, quoted in Finding
of Fact 4, from the City Manager; that he attached a memorandum of his own,
dated
July 30, 1985, to the City Manager's memorandum; that in his memorandum the
Building Inspector wrote in part as follows: "Again, I have no problems with
working 40 hours per week but why can't we be paid for the 5 extra hours like you
are going to pay the hourly wage employees?"; that in January 1986, he received
a 4.5 percent cost-of-living increase in his yearly salary; that in addition he
received a catch-up increase for a previously withheld increase; that he did not
receive extra compensation for the longer work week; that his salary in 1986 was
$21,157; that in 1987 he received a 2.5 percent cost-of-living increase in his
yearly salary; and that his salary was $21,686 a year in 1987.

8. That in 1984 the following employes were paid based on a yearly
salary: Administrative Assistant Kathy Schoenke, Administrative Clerks Jean
Krebs and Barb Collings, and Secretary Audrey Route; that in 1984, each of these
employes worked a 35 hour week in pay ranges five and six; that to determine a
1984 hourly rate from the 1984 yearly salary, the City Clerk divided the yearly
salary by 52 weeks and the resulting weekly salary by 35 hours to arrive at an
hourly salary; that in 1985 each of these employes was changed to an hourly
employe; that in 1985 each of these employes worked a 35 hour week; that on or
about July 26, 1985, each of these employes received the City Manager's
memorandum regarding work schedule, quoted in Finding of Fact 4; that on or about
August 1, 1985, each of these employes agreed to work a 40 hour week effective
January 1, 1986; that effective January 1, 1986, each of these employes
received
a 4.5 percent cost-of-living increase on their hourly rate of pay; that effective
January 1, 1986, each of these employes worked 40 hours per week at the 1986 wage
rate; that these employes were compensated for the extra five hours because they
were hourly employes working five more hours; that on or about January 1, 1987,
each of these employes received a 2.5 percent cost-of-living increase on their
hourly rate of pay.

9. That Administrative Assistant Sue Burkhardt was paid a yearly salary
in pay range five during 1984 and 1985; that during these two years she worked
a 35 hour week; that on or about July 26, 1985, she received the City Manager's
memorandum regarding work schedules, quoted in Finding of Fact 4; that on or
about August 1, 1985, she agreed to work a 40 hour week effective on or about
January 1, 1986; that she was paid a yearly salary of $18,762 in 1985; that to
determine her hourly rate for 1985, the City Clerk divided her 1985 yearly salary
by 52 weeks and divided her weekly salary by 35 hours; that to determine her
hourly salary in 1986, the City Clerk added the 4.5 percent cost-of-living
increase to her 1985 hourly rate; that effective January 1, 1986, she worked a
40 hour work week; that the Administrative Assistant was compensated for the
additional five hours she worked a week in 1986 because she was an hourly employe
working five more hours; and that on or about January 1, 1987, she was given a
2.5 percent cost-of-living increase or her hourly rate of pay.

10. That in April 1987 the Treasurer advised the City Manager that she
would work a 40 hour week; that the City Manager advised the City Clerk to
increase the Treasurer's salary by seven percent to compensate her for the 4.5
percent cost-of-living increase in 1986 and the 2.5 percent cost-of-living
increase in 1987; that the Treasurer's salary at that time was $20,246 a year;
that the City Clerk did not implement the seven percent increase by adding seven
percent to the yearly salary, as had been done when the City Clerk and the
Building Inspector had changed from 35 to 40 hours per week; that the City Clerk
implemented the seven percent increase by dividing the yearly salary by 52 weeks
and divided her weekly salary be 35 hours, which equals $11.12 an hour; that the
City Clerk then added seven percent to the hourly rate to arrive at a new hourly
rate of $11.90; that effective on April 13, 1987, the Treasurer was paid this
rate for 40 hours a week; that, therefore, the Treasurer was compensated for the
extra hours worked, as had the Administrative Assistant; that this amounted to
a yearly salary of $24,758; and that this was $1758 over the pay range authorized
by the City Council.

11. That the City and the Union commenced negotiations for an initial
collective bargaining agreement on or about July 16, 1987; that Marvin Lewis,
President of Teamsters Local 579 (hereinafter Union President), was the chief
spokesperson for the Union; that the Treasurer had been active in the organizing
campaign on behalf of the Union; that the Treasurer was elected Chief Steward by
the bargaining unit; that the Chief Steward is the top ranking Union
representative in the bargaining unit; that the City was advised that the
Treasurer was a Steward in June 1987; that the Treasurer participated in
negotiations for the initial collective bargaining agreement; that in its
proposal to the Union, the City proposed reducing the hourly rate of the
Treasurer from $11.90 to $10.50 an hour; that the City's proposal included other
proposals, including reducing the salary of Administrative Assistant Jean Krebs;
and that in mid-October, the Union President advised the City Manager that the
Union objected to any pay cuts for bargaining unit members during negotiations.

12. That on November 19, 1987, the City Manager sent a memorandum to
the
City Clerk, which reads in part as follows:

1. On November 17, I had an occasion to check on the
comparative
salaries of all employees in the Group 4 range. It was then that I first
realized that my instructions to adjust Theresa's salary seven percent in return
for her agreement to start working a 40 hour work week was misinterpreted by you.
My intention was to grant her the cost of living adjustment that was withheld in
1986 and 1987 when she chose not to accept a request to work a 40 hour week.
That would have brought her salary back up to the level of the Building Inspector
and Park and Recreation Director's salary of $21,686.

2. In fact her salary was increased to show additional
compensation for
the five extra hours which increased her annual salary to $24,758. This is a 22
percent increase and, as you know, exceeds the limit authorized in the Council
Salary Resolution of $18,000 to $23,000 for a Group 4 employee. The increase
given to Theresa also exceeds the amount earned by the Librarian and Chemist who
traditionally made more than the Treasurer.

3. I regret this error has happened, but see no recourse but
to require
the salary be corrected to $21,686 provided Theresa continued to work a 40 hour
work week. If she wishes to revert back to a 35 hour work week, her salary would
revert back to $20,246. In consideration of the City's error, I do not feel it
would be fair to require her to pay back the amount she has been over paid.
Please make this adjustment immediately.

that the City Clerk reduced the Treasurer's salary from $11.90 to $10.43 an hour
or from $24,758 to $21,686 a year effective on or about November 19, 1987; and
that the Union filed this complaint of prohibited practices on December 1, 1987.

13. That on February 16, 1988, the Union filed a petition to initiate
arbitration regarding the initial collective bargaining agreement with the City;
that in its final offer, the Union proposed that the Treasurer's salary be
established at $11.90 an hour for 1987, and that she receive $12.42 an hour in
1988; that in its final offer, the City proposed that the Treasurer's salary be
established at $10.43 an hour for 1987 and that she receive $10.74 an hour in
1988; that in support of its position regarding the Treasurer's salary, the Union
argued that the City had committed a prohibited practice by changing the
Treasurer's salary in 1987; that the City argued that it had not committed a
prohibited practice by changing the Treasurer's salary in 1987; that both parties
offered other arguments in support of its position regarding the Treasurer's
salary; and that the Arbitrator in the Interest Arbitration case, Robert J.
Mueller, accepted the final offer of the City.

14. That the parties to this action are the same as those before
Arbitrator Mueller in the interest arbitration; that the issue before Arbitrator
Mueller involved interest arbitration under Sec. 111.70(4)(cm), Stats.; that the
issue before this Examiner involves complaints of prohibited practices under
Secs. 11.70(3)(a)1, 3 and 4, Stats.; that none of the facts at issue here were
ultimate facts determined by Arbitrator Mueller; that, therefore, the present
case does not share an identity of parties, issues and material facts with the
interest arbitration case before Arbitrator Mueller; and that the present case
is not identical in all respects with that decided by Arbitrator Mueller.

15. That during this time period, the Treasurer was engaged in lawful and
concerted activities of which the City was aware; that the City was not shown to
be hostile to these activities; and that it was not shown that the City's action
in reducing the Treasurer's salary was based, even in part, on hostility toward
those activities.

16. That wage rates are a mandatory subject of bargaining; that the
Treasurer was paid $11.90 an hour from on or about April 13, 1989, through on or
about November 19, 1989; that this was the
statusquo; that on or about
November 19, 1989, the City unilaterally changed the wage rate of the Treasurer
to $10.43 an hour; and that the City did so without negotiating the change with
the Union.

Based upon the foregoing Findings of Fact, the Examiner makes and issues
the following

CONCLUSIONS OF LAW

1. That the Complainant in this matter is not barred by the doctrines
of resjudicata and collateral estoppel.

2. That by reducing the Treasurer's wage rate, the Respondent did not
discriminate against the Treasurer for the purpose of discouraging concerted
activities and membership in a labor organization in violation of
Sec. 111.70(3)(a)1 and 3, Stats.

3. That the Respondent, by its reduction of the wage rate of the
Treasurer in November 1987 noted in Finding of Fact 12 above:

a. committed a unilateral change of conditions of employment and
a refusal to bargain in violation of Sec. 111.70(3)(a)4,
Stats.; and

b. derivatively interfered with employes' exercise of their right
to bargain collectively through a representative under
Sec. 111.70(2), Stats., in violation of Sec. 111.70(3)(a)1,
Stats.

Based upon the foregoing Findings of Fact and Conclusions of Law, the
Examiner makes and renders the following

ORDER

1. IT IS ORDERED that the Respondent's Motion to Dismiss the complaint
on the basis of resjudicata and collateral estoppel is denied.

2. IT IS FURTHER ORDERED that the Complainant's allegation of a
violation of Secs. 111.70(3)(a)1 and 3, Stats., is dismissed.

3. IT IS FURTHER ORDERED that the Respondent City of Whitewater, its
officers and agent, shall immediately:

a. Cease and desist from implementing unlawful unilateral changes
in wages of employes represented by the Union and from
refusing to bargain changes in wages of employes with the
Union in violation of Secs. 111.70(3)(a)1 and 4, Stats.

b. Take the following affirmative action which the Examiner finds
will effectuate the policies of the Municipal Employment
Relations Act.

1. Make the Treasurer whole for any loss of wages
occasioned by the above-noted change in her wage
rate from the date of the wage rate change to the
effective date of the initial collective bar-gaining agreement between the parties, with
interest (1) on the monetary losses
experienced.

2. Notify its employes in the bargaining unit repre-sented
by the Union by posting in conspicuous
places on its premises where notices to such
employes are usually posted, a copy of the Notice
attached hereto and marked "Appendix A". That
Notice shall be signed by an authorized
represent-ative of the Respondent and shall be
posted immediately upon receipt of a copy of this
Order and shall remain posted for thirty (30)
days thereafter. Reasonable steps shall be taken
by the Respondent to ensure that said notices are
not altered, defaced or covered by other
material.

3. Notify the Wisconsin Employment Relations
Commission in writing, within twenty (20) days
following the date of this Order, as to what
steps have been taken to comply herewith. (2)

Dated at Madison, Wisconsin this 11th day of April, 1990.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

By

James W. Engmann, Examiner

APPENDIX "A"

NOTICE TO EMPLOYES

Pursuant to an Order of the Wisconsin Employment Relations Commission, and
in order to effectuate the policies of the Municipal Employment Relations Act,
we hereby notify our employes that:

1. We will not commit unilateral changes in wage rates of bargaining
unit employes represented by Teamsters Local Union 579.

2. To the extent that we have not already done so, we will make Theresa
Graham, a bargaining unit employe represented by Teamster Local Union 579, whole
for wages lost by our unilateral change in her wage rate on or about November 19,
1987, from said unilateral change to the effective date of our first collective
bargaining agreement with Teamsters Local Union 579, and we will pay Theresa
Graham interest on any monetary loss experienced.

Date at , Wisconsin this day of , 1990.

City of Whitewater

By

CITY OF WHITEWATER

MEMORANDUM ACCOMPANYING FINDINGS
OF

FACT, CONCLUSIONS OF LAW AND ORDER

POSITIONS OF THE PARTIES

Complainant

On brief, the Complainant argues that the City's reduction of the
Treasurer's wage rate violated Secs. 111.70(3)(a)1 and 3, Stats.; that said
action by the City constitutes discrimination for the purpose of discouraging
concerted activity; that the Treasurer was engaged in concerted activity by
voicing her position regarding the Union, by being selected as a Union steward
and by her participation in negotiations with the City; that there is no dispute
that the City was aware of her concerted activity; that the City felt animus
toward such activity, shown by the City's opposition to the Treasurer's inclusion
in the bargaining unit initially and by the City Manager's proposal to make her
a supervisor so as to exclude her from the bargaining unit; that the City's
action in reducing her salary shows that the City felt animus toward the
Treasurer's concerted activity and that the City's action to reduce her salary
was motivated, at least in part, by the City's animus toward that concerted
activity; that the City's defense to this allegation of discrimination is that
the reduction in the Treasurer's salary was solely for the purpose of correcting
an error in calculation; that all of the evidence indicates that this assertion
is pretextual; that the evidence indicates that it was the Treasurer's desire for
inclusion in the bargaining unit and her active participation in it which was the
motivating force behind her wage reduction, not the claimed arithmetic
calculation; and that, therefore, the reduction is in direct violation of
Secs. 111.70(3)(a)1 and 3, Stats.

The Complainant also argues that the City's unilateral reduction of the
Treasurer's wage rate violates Secs. 111.70(3)(1)1 and 4, Stats.; that the City's
action constitutes a unilateral action in violation of its obligation to bargain
with the exclusive representative of its employes; that it is well recognized
that an employer may not unilaterally alter wages, hours or working conditions
which are mandatory subject of bargaining without first negotiating with the
Union either during negotiations for a first agreement or during a hiatus between
agreements; that such a unilateral change constitutes a perse
violation of the
duty to bargain; that there can be no doubt that alteration of a wage rate
constitutes a mandatory subject of bargaining; that, therefore, the wage rate of
the Treasurer is not susceptible to unilateral change; that the City's violation
is willful since the Union told the City during negotiations of the necessity of
maintaining wages at the statusquo during negotiations; that
the City's defense
is that its intention in reducing the Treasurer's wage rate was only to correct
a calculation error; that this is not a valid defense to a claim for refusal to
bargain; and that, regardless of whether the reduction was made in good faith,
it constitutes a unilateral change in violation of Sec. 111.70, Stats., which can
only be remedied by returning to the
statusquoante.

On reply brief, the Complainant argues that the present complaint is not
barred by the doctrine of collateral estoppel; that while the parties are the
same in this case as in the arbitration before Arbitrator Mueller, the issues in
the case differ greatly; that in the interest arbitration before Arbitrator
Mueller, the issue was which final offer package was more reasonable under the
statutory criteria found in Sec. 111.70(4)(cm)7, Stats.; that by contrast the
issue in the present proceeding is whether the Respondent committed prohibited
practices within the meanings of Secs. 111.70(3)(a)1, 3 and 4, Stats.; that the
time periods covered by the two proceedings are different; that the interest
arbitration established terms and conditions of employment commencing January 1,
1988; that the present case involves an action taken by the City in November
1987; that under these circumstances, the decision of Arbitrator Mueller can not
bar the present prohibited practice proceeding; that the doctrine of collateral
estoppel does not apply; that there was a general agreement by the parties that
the present prohibited practice case would be held in abeyance pending the
outcome of the interest arbitration; that the Union did not forfeit its right to
pursue the prohibited practice by going forward with the interest arbitration
case; that while the award makes passing reference to the issue of discrim-inatory motive,
there is absolutely no suggestion that the arbitrator addressed
the issue of unilateral change in working conditions in violation of its
obligation to bargain in god faith; and that, therefore, the doctrine of waiver
or estoppel are inapplicable in this case and the Union's complaint must be
addressed on the merits.

The Complainant also argues that the evidence in the record establishes
that the City's reduction of the Treasurer's wage rate in November 1987 was
discriminatory; that the City's justification for reducing the Treasurer's wage
rate is based on contradictory rationale; that whatever the City's justification
for its action, it was always applied to the Treasurer's disadvantage since she
became a Union supporter; and that the admissions of the City Manager and the
disparate treatment which she received in relation to others lead to the
unavoidable conclusion that the City discriminated against the Treasurer because
of her Union activity.

In addition the Complainant argues that the City's conduct constituted a
unilateral change of working conditions in violation of Sec. 111.70(3)(a)1 and 4,
Stats.; that the City was obligated to negotiate with the Union concerning the
proposed treatment of the Treasurer and its failure to do so constituted a
prohibited practice; that the City's argument that the Union waived its right to
bargain over Treasurer's reduced compensation is ridiculous; that the Union
opposed the reduction and immediately protested the reduction when it occurred;
that the present complaint is not moot on the basis of the subsequent
arbitration; that the prohibited practice occurred months before the effective
period of the labor agreement; that, therefore, the complaint is not moot; that
the interest arbitration hearing does not waive the Treasurer's right to back
pay; that the parties agreed that the present action would be held in abeyance
during the interest arbitration proceeding; and that, therefore, since the
dispute was not remedied by the arbitration award, the Union can pursue a make
whole remedy for the Treasurer.

Respondent

On brief, the Respondent argues that the doctrine of collateral estoppel
requires dismissal of the complaint; that the Respondent did not waive the right
to assert that collateral estoppel demands dismissal of the complaint; that it
is an accepted principle that for a waiver to be effective, it must be express
in nature and knowingly undertaken in a clear and specific manner; that general
and implied waivers will not be enforced under normal circumstances; that it is
evident from the record that there was no express waiver of the right to assert
the preclusive effect of either resjudicata or collateral
estoppel during these
proceedings; that the Complainant's complaint of prohibited practice should be
dismissed upon the application of the doctrine of collateral estoppel; that the
Wisconsin Employment Relations Commission has not found it inappropriate to apply
the principles of resjudicata to arbitration awards where
there is an identity
of parties, issue and remedy and no material discrepancies of fact; that there
is no question that the parties in the interest arbitration case before
Arbitrator Robert J. Mueller are identical to the parties in this matter; that
the question of whether the readjustment of the Treasurer's wage rate constituted
discrimination within the meaning of Sec. 111.70(3)(a)3, Stats., and/or a
unilateral act which constituted a refusal to bargain within the meaning of
Sec. 111.70(3)(a)1 and 4, Stats., was fully and fairly litigated and decided in
the proceedings before Arbitrator Mueller; that the Union raised the issues
regarding the readjustment of the Treasurer's wage rate before Arbitrator
Mueller; that Arbitrator Mueller rejected the Union's allegation of prohibited
practice; and that, therefore, the City requests that the complaint be dismissed
in its entirety.

The City also argues that it has not committed prohibited practices within
the meaning of Sec. 111.70(3)(a)3, Stats.; that the Complainant has failed to
establish a prima facie violation of said section; that the Complainant Union has
the burden of demonstrating by a clear and satisfactory preponderance of the
evidence that the Respondent's actions were based at least in part on anti-union
consideration; that the City's opposition to the inclusion of the Treasurer's job
classification in the bargaining unit was not a hostile act motivated by anti-union animus but
an assertion of rights granted under Sec. 111.70, Stats.; that
the reduction proposed in Treasurer's wage rate during negotiations was not an
act of retribution but was based upon evidence provided during the represent-ation hearing
and the City's analysis of the actual work performed in the
classification compared with other classifications in the wage range; and that
while there is indication that the City had knowledge that the Treasurer was
engaged in concerted activity on behalf of the Union, there is no indication that
the City harbored any animosity toward the Treasurer as a result of activities
and there is no evidence that the City acted against the Treasurer as a result
of Union activity. In addition, the City argues that the Respondent has
articulated legitimate non-discriminatory reasons for the Treasurer's wage
adjustment; that it has established by clear and convincing evidence that the
adjustment in the Treasurer's compensation was not motivated by discriminatory
intent; that a mistake was made in the computation of the Treasurer's
compensation when she elected to adjust her schedule from 35 to 40 hours per
work; that it is the correction of the mistake which gives rise to this dispute;
and that nothing in the record indicates that the computation adjustment was
motivated in any way by animosity toward the Treasurer as a result of her
activity in and involvement on behalf of the Union. The City also argues that
the Complainant has not demonstrated that the reasons articulated by the
Respondent were a pretext for discriminatory conduct; that the Respondent has
demonstrated a legitimate non-discriminatory reason for adjusting the Treasurer's
compensation; that the Complainant must prove that the reason advanced is merely
camouflage for a reduction in compensation which was predicated on the
Treasurer's Union activity; that the record shows that the Complainant has failed
to offer any proof which conclusively demonstrates that the reasons given for the
wage adjustment were a cover up for illegal conduct; and that, therefore, the
Complainant's allegations should be found to be totally lacking in merit.

As to the alleged violation of Sec. 111.70(3)(a)1 and 4, Stats., the City
argues that it did not violate said sections; that while it recognizes the
obligation to bargain prior to any change in wages and benefits it does not
believe that this obligation applies in this case; that when the Treasurer
accepted the compensation adjustment during the campaign, the new wage rate had
to be computed according to guidelines previously established and the method
which was used when the Respondent made the adjustment for the other employes;
that any correction of a computational mistake was an integral part of main-taining the
statusquo and not a unilateral refusal to bargain; that the
correction of a computational mistake has not and should not be subject to a
bargaining obligation; that this is especially true where the adjustment conforms
with existing pay practices and does not place the employe in any worse position
that she would have been had the mistake not occurred; that in any case the
Complainant has waived the right to negotiate; that in the alternative the
obligation to bargain concerning the Treasurer's wage rate has been merged into
the interest arbitration proceedings; and that, therefore, the Respondent
requests that a finding be made that it has not violated Sec. 111.70(3)(a)1
and 4, Stats.

Finally, the Respondent argues that the remedy requested by the Complainant
is inappropriate; that the Complainant's request that the order include a make
whole remedy for the Treasurer which would restore the money lost as a result of
the November 1987 adjustment up to and through the 1988-89 contract would violate
the final and binding nature of interest arbitration awards; that such a decision
would run counter to established Commission precedent; that Arbitrator Mueller
has established the Treasurer's compensation for the 1988-89 contract; and that,
therefore, any remedy established in this matter should cover only the period
from the date of the occurrence to the retroactive date of the collective
bargaining agreement.

DISCUSSION

1. Motion to Dismiss

On August 22, 1989, the Respondent filed a Motion to Dismiss based upon
resjudicata. On August 23, 1989, the Complainant
filed a letter in opposition
to said Motion. On August 25, 1989, the Examiner issued an Order Scheduling
Hearing on the Motion to Dismiss in concert with the hearing on the merits
scheduled for August 30, 1989.

The Commission recognizes the doctrine of
resjudicata where the subsequent
litigation is shown to share an identity of parties, issues and material
facts. (3) The Respondent argues that the
present case share an identity of
parties, issues and material facts with the interest arbitration case before
Arbitrator Mueller. The Complainant disagrees.

The record is clear that the parties that appeared before Arbitrator
Mueller are the parties here present. The record is also clear that some of the
facts involved in the allegation of discrimination based on concerted activities
were presented to the Arbitrator. But it is also clear that the issues facing
this Examiner were not before Arbitrator Mueller in the interest arbitration
case.

The issue before the Arbitrator was which party's final offer should be
adopted and incorporated into a written collective bargaining agreement (4) based
upon statutorily stated factors. (5) As
such he received evidence and heard
arguments regarding the alleged discrimination based on concerted activity at
issue in this case. However, the issue of whether the Respondent violated
Secs. 111.70(3)(a)1, 3 and 4, Stats., was not before the Arbitrator. Arbitrator
Mueller's authority was limited to selecting a final offer; therefore, he had no
authority to remedy any prohibited practice if he had found one.

The Respondent also argues that the doctrine of collateral estoppel
requires dismissal of this complaint of prohibited practices. As cited by the
Respondent, the Wisconsin Supreme Court has ruled that collateral estoppel
precludes "relitigation of an issue of ultimate fact previously determined by a
valid final judgment in an action between the same parties". (6) The Court also
stated that the doctrine applies "where the matter raised in the second suit is
identical in all respects with that decided in the first proceeding and where the
controlling facts and applicable legal rules remain unchanged". (7)

As stated above, some of the facts involving the allegation of
discrimination based on concerted activities were presented before the
arbitrator; however, said facts were not ultimate facts upon which the Arbitrator
based his decision. Indeed, the matter raised in this case is not identical in
all respects with that decided in the first proceeding.

For these reasons, the doctrines of resjudicata and
collateral estoppel
do not apply to this case; therefore, the Motion to Dismiss based upon these
doctrines is denied.

2. Alleged Violations of Secs. 111.70(3)(a)1 and 3, Stats.

The Complainant alleges that the action of the City in reducing the wages
of the Treasurer constitutes discrimination for the purpose of discouraging
concerted activity in violation of Sec. 111.70(3)(a)1 and 3, Stats.

Section 111.70(3)(a) states that it is a prohibited practice for a
municipal employer:

3. To encourage or discourage a membership in any labor
organization by
discrimination in regard to hiring, tenure, or other terms or conditions of
employment; but the prohibition shall not apply to a fair share agreement.

In order to prevail on a complaint alleging a violation of
Sec. 111.70(3)(a)3, Stats., the Union must prove by a clear and satisfactory
preponderance of the evidence that the Treasurer was engaged in lawful and
concerted activities, that the City was hostile toward those activities, and that
the City's action was based, at least in part, on hostility toward those
activities. (8)

The record shows that the Treasurer was active in the Union's organizing
campaign, that she was selected as a Union steward and that she served on the
Union's bargaining team for the initial collective bargaining agreement. These
are certainly concerted activities protected by Sec. 111.70(1)(a), Stats. By the
nature of these activities and based on the record in this case, it is clear that
the City was aware of the Treasurer's concerted activities. The question remains
whether the City was hostile toward those activities and whether the City's
action was based, at least in part, on hostility toward those activities.

In terms of showing that the City was hostile to the Treasurer's concerted
activity, the Union first argues that the City's animus is shown by its
opposition to the Treasurer inclusion in the bargaining unit. While it is true
that the City argued before the Commission that the Treasurer should be excluded
from the bargaining unit, this does not show hostility to her protected activity
but a question regarding representation, specifically whether the Treasurer was
a municipal employe or a managerial employe.

The Union also asserts that the City's discussion with the Treasurer in
which the City Manager suggested that she be made a supervisor shows animus
toward the Treasurer's concerted activity. Again, this goes to the City's belief
that the position of Treasurer should be excluded from the bargaining unit, not
anti-union animus toward the Treasurer.

Finally, the Union argues that the City's action in reducing the
Treasurer's salary shows that the City felt animus toward the Treasurer's
concerted activity. This action, by itself, does not show anti-union hostility;
the Union must show that this action was based, at least in part, on hostility.
The action, in and of itself, does not prove the motivation.

The City asserts that it took the action it did for the sole purpose of
correcting an error in calculation. The Union argues that this assertion is
pretextual, that it was the Treasurer's desire for inclusion in the bargaining
unit and her active participation in it which was the motivating force behind the
wage reduction. The proof of this, according to the Union, is that the City
treated the Treasurer differently than it treated other's who changed from 35 to
40 hours. The City admits to this, up to a point, in that it admits it treated
the Treasurer differently than it treated some other employes, but the City
alleges it treated her similarly to those similarly situated.

Any support the Union seeks from the situations of Administrative Assistant
Schoenke, Administrative Clerks Krebs and Collings and Secretary Route is
misplaced. These employes had been converted to hourly employes prior to the
change from 35 to 40 hour work week. Thus, the increase in hours worked resulted
in their being compensated for those hours.

The Union also seeks support from the situation of Administrative Assistant
Burkhardt (hereinafter the Administrative Assistant). The record is clear that
when she changed from working a 35 hour week to a 40 hour week, she was
compensated for the five additional hours, in addition to receiving the yearly
raises of 4.5 percent and 2.5 percent. The City counters with the situations of
the City Clerk and the Building Inspector. The Union asserts there is no proof
that the Building Inspector worked more hours as a result of the change over to
a 40 hour work week. The Union is in error. The Building Inspector's memorandum
to the City, noted in Finding of Fact 7, specifically notes that he is willing
to work the five extra hours. While it is true that he had worked weeks longer
than 35 hours in the past, it was as a salaried employe; nonetheless, his normal
work week was 35 hours. That was changed by this action of the City. His normal
work week became 40 hours per week. The situation of the City Clerk is less
clear. While she was given and she signed the City Manager's memorandum quoted
in Finding of Fact 4, the record also suggests that her work schedule did not
change since she attended night meetings.

The Union therefore argues that because the City treated the Treasurer
differently than it treated the Administrative Assistant, the City discriminated
against the Treasurer because of concerted activity. The City asserts, however,
that it treated the Treasurer just as it treated the Building Inspector, that it
treated her like him because these were traditionally salaried positions in pay
range 4, and that the Administrative Assistant was traditionally a hourly employe
in pay range 5.

There is much in the record that suggests that a mistake was made in
computing the Treasurer's salary. The fact that the computation as done by the
City Clerk gave the Treasurer a salary above the range as authorized by the City
Council supports the City's contention. In any case, the City has articulated
a business reason for its action, one supported by the situation of the Building
Inspector and the exceeding of the approved salary range. The Union's only
evidence to support an allegation of discrimination was the act itself and the
situation of the Administrative Assistant. This is not enough to sustain a
charge of discrimination.

3. Alleged Violations of Secs. 111.70(3)(a)1 and 4, Stats.

The Complainant argues that the City violated Secs. 111.70(3)(a)1 and 4,
Stats., when it unilaterally reduced the wage rate of the Treasurer without
bargaining with the exclusive bargaining representative. The City argues that
it was correcting a computational error and, therefore, was not unilaterally
changing the statusquo.

It is well settled that, absent a valid defense, a unilateral change in the
statusquo wages, hours or conditions of employment during
negotiations of a
first collective bargaining agreement is a perse violation of
the duty to
bargain under Sec. 111.70(3)(a)4, Stats. (9) Unilateral changes are tantamount
to an outright refusal to bargain about a mandatory subject of bargaining because
each of those actions undercuts the integrity of the collective bar-gaining
process in a manner inherently inconsistent with the statutory mandate to bargain
in good faith. (10) In addition, an employer's
unilateral change evidences a
disregard for the role and status of the majority representative, which disregard
is inherently inconsistent with good faith bargaining. (11)

No dispute exists that the City reduced the wage rate of the Treasurer from
$11.90 an hour to $10.43 an hour without negotiating said reduction with the
Union. As a defense, the City alleges that when the Treasurer accepted the
compensation adjustment during the Union campaign, she accepted the guidelines
previously established to make the adjustment, and that, as a computational
mistake was made, correcting the mistake was integral part of maintaining the
statusquo.

But the mistake at issue here is not one of computation in which someone
added or subtracted incorrectly. The City Manager does not say that the City
Clerk hit the wrong button on the calculator. In fact, the City Clerk did not
make that type of error at all. She hit all the right buttons on the calculator;
at least, right to her way of thinking. The mistake that the City allegedly
corrected is not one of the calculation, but one of the method of calculation,
the process used to determine the Treasurer's wage rate. The City Clerk took the
Treasurer's yearly salary, divided by 52 weeks and then 35 hours per week to
determine the hourly rate, and then the City Clerk added the seven percent. The
City Manager would have either divided the Treasurer's yearly salary by 52 weeks
and then 40 hours per week and then added the seven percent or he would have
added seven percent to her yearly salary and then divided by 52 and 40.

If the City Clerk was in error, it was not an error in calculation but in
procedure. A neutral person armed with a calculator or even a pencil and paper
can find and correct an error in calculation, but a neutral person cannot deter-mine if the
procedure is incorrect because the procedure is a policy decision.
If it is an error, it is an error because someone determined that the calcul-ation should have
been done in a different manner. Here, the City Manager made
that determination. The Union argues that the City should have negotiated that
determination.

As the reduction in the wage rate of the Treasurer's wage rate involves a
mandatory subject of bargaining, the City was obliged by Sec. 111.70(3)(a)4,
Stats., to negotiate the change in the Treasurer's wage rate. Even assuming that
the dispute over the calculation of the Treasurer's wage rate was an honest
disagreement over how the rate should be calculated and that the City believe in
good faith that it did not need to bargain over the correction of what it saw as
a calculation error, the City is not relieved of its obligation to have bargained
the change in the Treasurer's wage rate. (12)

4. Remedy for Violation of Secs. 111.70(3)(a)1 and 4, Stats.

As to remedy, the Union seeks to have the Treasurer's wage rate established
at $11.90 an hour from the date the City unilaterally changed the wage rate in
November 1987 until March 31, 1989, the day the Arbitration Award was
implemented. The Union argues that the City must make the Treasurer whole for
losses from the inception of the prohibited practice until the date the parties
implemented their first collective bargaining agreement, citing School District
of Wisconsin Rapids. (13) In
Wisconsin Rapids the Commission found that the
District unilaterally altered the wages, terms and conditions of employment when
it failed to grant wage and vacation increases granted in expired wage and
vacation schedules. The Commission ordered a make whole remedy for any losses
of wages and vacation benefits from the date of the Board's action through the
date of the implementation of the initial agreement.

In general, the make-whole remedy is meant to put the aggrieved party where
that person would have been but for the illegal action. In Wisconsin Rapids the
District had withheld wages and vacation time rightfully owed to the affected
employes, wages and vacation time they had lost by the employer's illegal action.

In the case at hand, the City argues that if a violation is found, the
remedy should be limited to the period from the date of the City's action in
November 1987, to the effective date of the contract established by the
Arbitrator's award. The City is correct; to do otherwise would exceed a make
whole remedy, for if the City had not changed the wage rate of the Treasurer in
November 1987, the arbitration award would have changed it, back to the effective
date of the award. In Wisconsin Rapids, the employes suffered losses up to the
date of the implementation of the initial contract. Here the Treasurer suffered
no such loss; her right to a salary of $11.90 ended with the effective date of
the initial collective bargaining agreement between the parties. Thus the remedy
is fashioned to compensate the Treasurer only for the wages she would have
received but for the City's unilateral change in her wage rate in violation of
Secs. 111.70(3)(a)1 and 4, Stats.

Dated at Madison, Wisconsin this 11th day of April, 1990.

WISCONSIN EMPLOYMENT RELATIONS COMMISSION

By

James W. Engmann, Examiner

1. The applicable interest rate is the Sec. 814.04(4),
Stats., rate in effect
at the time the complaint was initially filed with the Commission.

2. Any party may file a petition for review with the
Commission by following
the procedures set forth in Sec. 111.07(5), Stats.

Section 111.07(5), Stats.

(5) The commission may authorize a commissioner or examiner to make
findings and orders. Any party in interest who is dissatisfied with the
findings or order of a commissioner or examiner may file a written
petition with the commission as a body to review the findings or order. If
no petition is filed within 20 days from the date that a copy of the
findings or order of the commissioner or examiner was mailed to the last
known address of the parties in interest, such findings or order shall be
considered the findings or order of the commission as a body unless set
aside, reversed or modified by such commissioner or examiner within such
time. If the findings or order are set aside by the commissioner or
examiner the status shall be the same as prior to the findings or order
set aside. If the findings or order are reversed or modified by the
commissioner or examiner the time for filing petition with the commission
shall run from the time that notice of such reversal or modification is
mailed to the last known address of the parties in interest. Within 45
days after the filing of such petition with the commission, the commission
shall either affirm, reverse, set aside or modify such findings or order,
in whole or in part, or direct the taking of additional testimony. Such
action shall be based on a review of the evidence submitted. If the
commission is satisfied that a party in interest has been prejudiced
because of exceptional delay in the receipt of a copy of any findings or
order it may extend the time another 20 days for filing a petition with
the commission.